Third District Court of Appeal
State of Florida
Opinion filed March 24, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0050
Lower Tribunal No. 15-24325
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Hialeah Hospital, Inc.,
Appellant,
vs.
Joshua Misius Hayes-Boursiquot, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Abby
Cynamon, Judge.
Falk, Waas, Hernandez, Solomon, Mendlestein & Davis P.A., and
Glenn P. Falk and Scott L. Mendlestein and Khristen S. Vachal-Reese;
Greenberg Traurig, P.A., and Elliot H. Scherker and Brigid F. Cech Samole
and Katherine M. Clemente, for appellant.
Law Offices of Alan Goldfarb, P.A., and Alan Goldfarb and David C.
Appleby; Joel S. Perwin, P.A., and Joel S. Perwin; R. Fred Lewis
(Tallahassee), for appellee.
Before LINDSEY, MILLER and BOKOR, JJ.
BOKOR, J.
Hialeah Hospital, Inc. (“Appellant” or “Hialeah Hospital”) urges reversal
of the jury verdict in favor of The Estate of Arleisha Hayes (“Appellee” or “the
Estate”) based on the trial court’s refusal to permit the exercise of a defense
peremptory challenge of an African-American potential juror. Hialeah
Hospital also argues the trial court abused its discretion in refusing to grant
a new trial after allowing inadmissible expert testimony during trial. 1 For the
reasons that follow, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 28, 2014, Arleisha Hayes was admitted to Hialeah Hospital
for respiratory failure and acute exacerbation of bronchial asthma. Over the
course of several days, Ms. Hayes’s medical condition deteriorated,
eventually reaching a critical point requiring a rapid response by hospital
staff. On February 7th, 2014, Hialeah Hospital’s house physician 2 evaluated
Ms. Hayes, ultimately deciding not to recommend further intervention. Sadly,
despite the emergent response, Ms. Hayes passed. The Estate sued
1
Hialeah Hospital also appeals the trial court’s refusal to grant a directed
verdict based on lack of causation. The record demonstrates competent
substantial evidence to support causation. Accordingly, we summarily affirm
on this ground. See Graham Companies v. Amado,
305 So. 3d 572, 575-77
(Fla. 3d DCA 2020).
2
It is worth noting that a house physician is not licensed to practice medicine.
Instead, pursuant to state law and Hialeah Hospital’s policies, a house
physician must be supervised by a licensed physician at all times.
2
Hialeah Hospital for negligence, alleging that its failure to properly assess
and treat the decedent’s later-discovered pneumonia caused or contributed
to her death.
Prior to trial, the parties agreed not to reference the licensed physicians
who cared for Ms. Hayes (the “Pretrial Agreement”).3 Nonetheless,
Appellant’s counsel repeatedly discussed the involvement of numerous
licensed physicians despite the Pretrial Agreement. Similarly, Appellee’s
expert witnesses testified as to the attending licensed physician’s failure to
supervise the house physician during the rapid response and to prescribe
medicine. During trial, Appellee’s expert witness also testified as to the
illegality of the house physician’s practice of medicine without a license
based on her understanding as a licensed physician. 4 Upon objection, the
trial court provided a curative instruction explaining to the jury that a doctor
was unable to opine as to legal matters. Thereafter, the jury returned a
verdict in favor of the Estate.
3
In pertinent part, the Pretrial Agreement provided that “there will be no
evidence, testimony, claims, arguments, references, or suggestions made
during the course of the proceeding that would suggest or lead to any
inference of fault or liability as to the care and treatment rendered by any of
Arleisha Hayes’ Florida licensed treating physicians.”
4
Appellee’s expert witness also discussed the house physician’s “arrogance
and willingness to disobey” in a video deposition which was improperly edited
and presented to the jury.
3
II. ANALYSIS
Hialeah Hospital seeks a new trial based on the following purported
errors: (a) sustaining a Melbourne challenge 5 to a defense peremptory strike;
and (b) allowing inadmissible and prejudicial expert testimony. We address
each issue in turn.
a. Melbourne Challenge
During jury selection, Appellant’s counsel sought to exercise
peremptory challenges to excuse three potential jurors belonging to a
protected class based on race, specifically, one Haitian-American and two
5
See Melbourne v. State,
679 So. 2d 759, 764 (Fla. 1996). Melbourne
established the following guidelines for a trial court’s evaluation of whether
an impermissible race-based motive underlies a party’s peremptory
challenge:
[Step 1.] A party objecting to the other side’s use of a peremptory
challenge on racial grounds must: a) make a timely objection on
that basis, b) show that the venireperson is a member of a
distinct racial group, and c) request that the court ask the striking
party its reason for the strike.
[Step 2.] At this point, the burden of production shifts to the
proponent of the strike to come forward with a race-neutral
explanation.
[Step 3.] If the explanation is facially race-neutral and the court
believes that, given all the circumstances surrounding the strike,
the explanation is not a pretext, the strike will be sustained.
Julmice v. State,
14 So. 3d 1199, 1203 (Fla. 3d DCA 2009).
4
African-American potential jurors. 6 Appellant takes issue on appeal with only
the third peremptory challenge in which the trial court upheld Appellee’s third
Melbourne challenge. In sustaining this Melbourne challenge, the trial court
found what it considered to be an impermissible pattern of peremptory
challenges based on race. Accordingly, we examine the trial record to
discern whether the trial court abused its discretion in finding an
impermissible pattern of striking jurors based on race.
In each of the three Melbourne challenges, Appellee’s counsel timely
objected, noted that each challenged potential juror was a member of a
protected class based on race, and sought a race-neutral and non-pretextual
reason for the peremptory challenge. For the Melbourne challenge related
to the first potential juror, Appellant’s counsel proffered the race-neutral
explanation that this potential juror expressed a devotion to policies and
procedures in the context of her employment as a baker at Whole Foods.
Counsel explained that he exercised a peremptory challenge on this
potential juror because policies and procedures would feature heavily during
trial. The trial court found this explanation race-neutral and non-pretextual
and overruled the Melbourne challenge. For the second challenged potential
6
Notably, the decedent was identified by the Estate’s counsel as “Haitian
and African-American.”
5
juror, Appellant’s counsel proffered that this potential juror’s employment as
hospital staff and relationship with a nurse rendered him unsuitable. After
consideration, the trial court found the explanation pretextual and sustained
the Melbourne objection.
Finally, for the third Melbourne challenge, the only one challenged on
appeal, Appellant’s counsel proffered the race-neutral explanation that he
sought to strike this potential juror due to his training and experience in the
medical field as a licensed practical nurse. In this case, the trial court found
that Appellant’s race-neutral explanation was not genuine due to an
impermissible pattern of seeking to excuse potential jurors based on race. 7
Accordingly, the trial court sustained the Melbourne objection.
The trial court’s focus during a Melbourne challenge is not “the
reasonableness of the asserted nonracial motive . . . [but] rather . . . the
genuineness of the motive[,] . . . . a finding which turn[s] primarily on an
assessment of credibility.” Melbourne,
679 So. 2d at 764 (internal quotations
omitted) (emphasis in original). This Court evaluates the trial court’s
assessment of credibility under a clearly-erroneous standard of review. See
Melendez v. State,
787 So. 2d 918, 920 (Fla. 3d DCA 2001); see also Pringle
7
In considering, and rejecting, Appellant’s race-neutral explanation and
assessing credibility, the trial court noted that “[a] pattern of striking members
of a racial group is relevant to the Court’s determination.”
6
v. State,
792 So. 2d 533, 536 (Fla. 3d DCA 2001). It is well established that
a juror’s occupation can be the foundation of a proper peremptory challenge.
See Landis v. State,
143 So. 3d 974, 979 (Fla. 4th DCA 2014); see also
James v. State,
768 So. 2d 1221, 1223 (Fla. 3d DCA 2000). Here, however,
the record demonstrates that Appellant’s counsel exercised three
peremptory challenges in a row on members of a race-protected class
matching the decedent’s identification. Additionally, the trial court found the
proffered reasons for two of three such challenges pretextual. Accordingly,
there is sufficient record evidence to support the trial court’s credibility
assessments such that they may not be disturbed under the clearly-
erroneous standard.
Moreover, a trial court may consider logical implications in evaluating
the likelihood of racial discrimination where a pattern exists. See Sparks v.
Allstate Const., Inc.,
16 So. 3d 161, 164 (Fla. 3d DCA 2009). A trial court’s
finding of pretext premised on a pattern will survive review under an abuse
of discretion standard where, as here, the “transcript demonstrates a
systematic use of [peremptory challenges], followed by what seem to be
quickly-contrived excuses for the strikes, in a manner calculated to exclude
African Americans from serving on the jury.” Id.; see also Melbourne,
679
So. 2d at 765 (noting that this court’s review is guided by “reason and
7
common sense”). As such, we find that the trial court properly exercised its
discretion in sustaining a Melbourne challenge based on an impermissible
pattern of striking potential jurors based on race.
b. Expert Testimony
We review the denial of a motion for a new trial for abuse of discretion.
50 State Sec. Serv., Inc. v. Giangrandi,
132 So. 3d 1128, 1133 (Fla. 3d DCA
2013). First, Appellant argues that the trial court’s refusal to enforce the
Pretrial Agreement and subsequent denial of its motion for a new trial
constitutes reversable error. In response, Appellee argues Appellant
“opened the door” once it introduced evidence and testimony in
contravention of the stipulation. While a pretrial stipulation should be strictly
enforced, LPI/Key W. Assocs., Ltd. v. Beachcomber Jewelers, Inc.,
77 So.
3d 852, 854 (Fla. 3d DCA 2012), a trial court has broad discretion due to its
unique vantage point both to determine the scope of an alleged violation, if
any, and the appropriate remedy. See Jennings v. State,
124 So. 3d 257,
266 (Fla. 3d DCA 2013) (“Being present in the courtroom and having listened
to the witnesses, examined the exhibits, heard the arguments, and observed
the jurors, the trial judge was in the best position to gauge the impact of the
improper arguments on the entire trial.”).
8
In its order, the trial court found mistrial unwarranted, noting “that both
parties elicited testimony about other doctors and the actions they took.”
Here, the record supports the trial court’s determination that both parties
violated the Pretrial Agreement on numerous occasions. We therefore
conclude that the trial court did not abuse its discretion in finding that the
stipulation violations did not warrant a new trial.
Second, Appellant argues the trial court erred in refusing to grant a
new trial after allowing inadmissible and unduly prejudicial testimony.
Namely, Appellant contends references to the house physician’s “arrogance,
willingness to disobey and illegal behavior” merit a new trial. However, a trial
court should only grant a mistrial when the error is prejudicial enough to
vitiate the entire trial. Ward v. State,
306 So. 3d 1004, 1007 (Fla. 3d DCA
2020). As we explained in Ward,
In order to grant a mistrial based on impermissible trial testimony
from a witness, the witness’s comments must either deprive the
defendant of a fair and impartial trial, materially contribute to the
conviction, be so harmful or fundamentally tainted as to require
a new trial, or be so inflammatory that they might have influenced
the jury to reach a more severe verdict than that it would have
otherwise.
Id. (internal citations omitted); see also Talley v. State,
260 So. 3d 562, 568
(Fla. 3d DCA 2019) (explaining that mere prejudicial error does not merit
reversal of a trial court’s determination).
9
In this case, it appears the expert witness’s deposition was
inadvertently presented to the jury as an isolated part of trial. In other words,
the video deposition remarking on the house physician’s “arrogance and
willingness to disobey” did not become the “focus of the trial.” Ward, 306 So.
3d at 1007. As such, Appellant was not deprived of a fair trial. Further, “this
is particularly true where an appropriate curative instruction is given.” Id.
Here, the record reflects that the trial court provided a curative instruction
after Appellee’s expert witness testified as to the illegality of practicing
medicine without a license. See Jennings,
124 So. 3d at 266 (“Generally
speaking, the use of a curative instruction to dispel the prejudicial effect of
an objectionable comment is sufficient.”). Accordingly, we find that the trial
court did not abuse its discretion in issuing a curative instruction instead of
granting mistrial.
Affirmed.
10
